Commentary: First Amendment Gives Way to National Security: Countdown on for TikTok

The U.S. Supreme Court has agreed to take up TikTok’s plea for a stay of its own partial execution. The first round of briefs were due just before Christmas. The second and final round are due Jan. 3. Argument before the court is just a week later on Jan. 10. In appellate court land, this counts as super-sonic speed.

And there’s a good reason for speed. TikTok’s execution date, in America, is set for Jan. 19.

When Congress passed the Foreign Adversary Controlled Applications Act (FACAA) this past spring, it required one of two things to happen by that date. Either ByteDance, the company that owns TikTok, must divest itself (i.e., sell or give away, or get rid of somehow) of TikTok, or TikTok must shut down in the United States.

Neither of those things has happened yet.

You may be thinking that shutting down TikTok, one of many social media platforms available to Americans on the internet, is no grave matter. But TikTok is some combination of entertainment, political conversation, style consultant, food guide, sports talk, and business platform for 170 million people every month in America. By comparison, that’s almost 20 million more people than who voted in November’s presidential election. If TikTok were a candidate, it’d be a formidable one.

Which may be why TikTok’s influence on America was of such great concern to Congress that it passed FACAA. TikTok’s parent company, ByteDance, is incorporated in the Cayman Islands, but it’s headquartered in China. And that’s important because FACAA declares that China — as well as three other countries — are foreign adversaries of the United States. The law also made a specific finding that China controls TikTok. Those determinations mean, under the terms of the new law, that TikTok, as it’s presently structured, isn’t allowed to operate in America.

The First Amendment implications of that bar are as sweeping as they are obvious. If 170 million people in America are using TikTok to tik-talk to each other, important speech rights are at stake.

FACAA also created a litigation fast-track for any challenges to the law and at least that part of the law worked as planned. The U.S. Court of Appeals for the District of Columbia heard the case as a trial court (as required by one of the unusual provisions of FACAA) and handed down its ruling against TikTok on Dec. 6.

The D.C. Circuit agreed that the FACAA had First Amendment consequences. But the court ruled that national security concerns trumped those relating to the First Amendment. Even applying the high “strict scrutiny” standard to FACAA, the court held that the President’s and Congress’s consideration of national security concerns with TikTok were enough to warrant the dramatic remedy of banning the app from America altogether.

Broadly, there were two national security fears the government claimed required banning TikTok. The first was that the social media platform might give information it collected from its users to its owner ByteDance, which would, in turn, make it available to the Chinese government. That information might include image and audio data, internet search history, private user information, and even biometric information about users. China would then be able to exploit that data for its own purposes.

The second concern was that the Chinese government would use TikTok to wage influence campaigns in the U.S. by either emphasizing certain information to American users or by spreading disinformation to manipulate Americans.

For the court, the sheer size of TikTok’s user base – 170 million users every month and 5 billion uploaded videos in a single year – is precisely what makes China’s potential exploitation of the platform a national security concern.

There are at least two countervailing considerations to those concerns. First, Americans generally have speech rights to use whatever social media app they want. If there’s a risk that their data might be exploited, that’s a risk that users take with any internet service. None of us want our data stolen. But that happens with remarkable regularity, and still most of us make the choice to trust internet businesses and government agencies with the data.

Secondly, lots of online media outlets seek to manipulate American audiences’ views about politics, religion, and money. If the government can regulate TikTok for fear that Americans will be manipulated by malicious actors, why can’t it regulate Facebook or disfavored newspapers?  Few among us would trust the government to determine for all of us which data collectors on the internet will use the data fairly. And even fewer of us would want publishers on the internet to have to prove to regulators’ satisfaction that they will be impartial, objective, or honest in their editorial choices.

The D.C. Circuit deferred to the President and Congress on how to balance national security concerns against speech rights. Of course, deference to the national security determinations of the political branches is no guarantee of either security or justice.

To our country’s enduring shame, during World War II, the Supreme Court upheld a military order that people of Japanese ancestry could be forcibly removed from their homes and held in internment camps. The court permitted those detentions because military officials said our national security could only be protected if we put lots of people of Japanese descent in camps in case some unknown number of them were disloyal.

Perhaps it is true that the risks of Chinese ownership of TikTok are so great that Americans cannot be trusted or permitted to use it until China abdicates ownership of it. The Supreme Court will tell us the answer to that question very soon. In that answer, we’ll learn a little more about when Americans get to speak and when the government can silence that speech.

Cullen Seltzer is a litigator in Richmond, Va., and an adjunct professor at the University of Richmond Law School, where he teaches professional ethics.

by Guest Column, Virginia Mercury
By Cullen Seltzer

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